Terms and conditions

1. HOW TO READ THIS AGREEMENT

1.1 MEANING OF CAPITALISED WORDS AND PHRASES
Capitalised words and phrases used in these terms and conditions have the meaning given:

to that word or phrase in the Key Agreement Details;
to that word or phrase in a Statement of Work;
by the word immediately preceding any bolded and bracketed word(s) or phrase(s); or
in the definitions in clause 18 of this agreement.

1.2 ORDER OF PRECEDENCE

Subject to clause 1.2(b) and unless otherwise expressly stated, in the event of any inconsistency between these terms and conditions and a Statement of Work, these terms and conditions will prevail to the extent of such inconsistency.
Any Special Conditions set out in a Statement of Work that are:
1. intended to replace an “Old Clause” with a “New Clause” (as indicated by the use of both columns), then the “New Clause” will replace and prevail over the clause in the Old Clause column entirely; and
2. intended to add a “New Clause” (as indicated by the use of only the New Clause column) are incorporated in these terms and conditions and will replace and prevail over any other terms to the extent of any inconsistency.

2. DURATION AND RENEWAL OF THIS AGREEMENT

This agreement commences on the Start Date, and continues in effect until the End Date set out in the Key Agreement Details (Term), unless earlier terminated in accordance with clause 1412.1, or extended in accordance with clause 2(b).
The parties may agree to extend this agreement by mutual agreement, including by conduct that indicates an intention to extend the Term.
If any Services are supplied after the expiry of the Term without the parties having entered into a replacement agreement or otherwise having expressly agreed in writing that these terms will not apply, the terms of this agreement will continue to apply for those Services.
The duration of any Statement of Work is indicated by the dates set out in the Statement of Work.

3. ORDERING AND PERFORMANCE OF SERVICES

3.1 ORIGINAL STATEMENT OF WORK

Thirtyfour Creative will perform the Services in accordance with the Statement of Work as completed at the Start Date.

3.2 ADDITIONAL STATEMENTS OF WORK

The parties may agree to additional Statements of Work under these terms and conditions during the Term.
These terms and conditions will apply to all additional Statements of Work between the parties.
If the Client requests an additional Statement of Work, Thirtyfour Creative will provide a quote in accordance with the Statement of Work template in Schedule 2.
The Client will be taken to have accepted an additional Statement of Work if the Client informs or otherwise indicates to Thirtyfour Creative that the Client wishes for Thirtyfour Creative to proceed with the performing the additional Statement of Work.
An additional Statement of Work will not limit or otherwise affect any other current Statements of Work between the parties.

3.3 CHANGES TO STATEMENTS OF WORK

The Client must pay a ‘change in scope fee’, in an amount reasonably determined by Thirtyfour Creative (Change Fee), for changes to Services requested by the Client which alter the scope set out in the relevant Statement of Work and require Thirtyfour Creative to perform additional work or incur additional costs (Changes).
Unless otherwise agreed in writing, Thirtyfour Creative may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
Thirtyfour Creative will only be required to perform Changes, if:
1. Thirtyfour Creative agrees in writing to perform the Changes;
2. the Client confirms in writing that they wish for Thirtyfour Creative to proceed with the Changes and the relevant Change Fee; and
3. the Client pays the Change Fee, in accordance with clause 6.1 as if it was a Fee.

3.4 KEY DATES / TIMES / MILESTONES

The Key Dates, Times and / or Milestones set out in a Statement of Work in relation to the Services are indicative only and included as a guide for when the Services are expected to be performed.
Thirtyfour Creative may, due to various reasons beyond its control, need to make reasonable adjustments to the Key Dates, Times and / or Milestones. Thirtyfour Creative will notify the Client if more than a [24 hour] variation is required.

3.5 THIRD PARTY TERMS AND CONDITIONS

If Thirtyfour Creative is required to acquire goods or services supplied by a third party, the Client may be subject to the terms and conditions of that third party (‘Third Party Terms’).
Provided that Thirtyfour Creative has notified the Client of such Third Party Terms and provided the Client with a copy of those terms, the Client agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Client or Thirtyfour Creative acquires as part of providing the goods or services and Thirtyfour Creative will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
The Client acknowledges and agrees that if the Client does not agree to any Third Party Terms, this may affect Thirtyfour Creative’s ability to meet Key Dates and / or Times.
The Client has the right to reject any Third Party Terms. If the Client rejects the Third Party Terms, Thirtyfour Creative cannot provide the Services to the Client and clause 14 will apply.

3.6 SECURITY

Thirtyfour Creative will use its best efforts to ensure that the Client’s website, application or other information or data (Client Data) is stored securely. However, Thirtyfour Creative does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.

3.7 DISCLAIMER

The Client acknowledges and agrees that:

any information provided to the Client as part of or in connection with the Services is general in nature and may not be suitable for the Client’s circumstances;
all information provided as part of the Services is an opinion only, based on Thirtyfour Creative’s experience and best practice;
Thirtyfour Creative does not guarantee any particular outcome, or any particular decision from any third party, on any issue, if the Client relies on the Services; and
it is the Client’s responsibility to comply with applicable regulations relevant to the Client’s business, including industrial relations laws and privacy laws.

4 SPECIFIC SERVICES

4.1 HUBSPOT SERVICES

If a Statement of Work states that the Services include Hubspot services, Thirtyfour Creative will provide onboarding and CRM implementation services for Hubspot (Hubspot Services).
The Client agrees and acknowledges that where the Services include Hubspot Services that:
1. Hubspot Services are a third party service and the provisions in clause 3.6 apply;
2. setting up Hubspot Services takes time (upwards of several weeks) and the Client must comply with any timeframes or deadlines from either Hubspot or Thirtyfour Creative;
3. Thirtyfour Creative will not be responsible or liable for any fault or delays, or additional charges the Client must pay to either Hubspot or Thirtyfour Creative, due to the Client not complying with any timeframes or deadlines or not completing any required training or onboarding; and
4. the Client must successfully complete all Hubspot requirements, including onboarding, implementation and any other Hubspot requirements.

4.2 SEO SERVICES

If a Statement of Work states that the Services include search engine optimisation services (SEO Services):

the Client must provide Thirtyfour Creative access to its website and Google Ad accounts, allowing Thirtyfour Creative to sign in or be added as a user;
Thirtyfour Creative makes no promise or guarantee regarding the effectiveness of any SEO Services. Thirtyfour Creative only endeavours to use its professional skills to deliver an incremental improvement to the Client’s website traffic; and
the Client acknowledges and agrees that the effectiveness of the SEO Services may be affected by circumstances outside Thirtyfour Creative’s control, including:
1. changes in the policies and/or ranking algorithms of search engines;
2. changes to the Client’s account occasioned by a party other than Thirtyfour Creative; and
3. the platform that is used by Thirtyfour Creative to perform the SEO Services changing its functionality,
and Thirtyfour Creative will not be liable for any loss or damage suffered by the Client arising from any such circumstances.

4.3 PAID ADVERTISING

If a Statement of Work states that the Services include cost-per-click advertising services such as Google AdWords, Instagram, YouTube and Facebook Ads or sales funnels, nurture emails or the design of landing pages (Paid Advertising), the Client acknowledges and agrees that (unless otherwise agreed in writing):

Thirtyfour Creative makes no promise or guarantee regarding the effectiveness of any Paid Advertising, including as to conversion rates, but instead by using its professional skills aims to deliver an incremental improvement of the Client’s results;
the effectiveness of the Paid Advertising may be affected by circumstances outside Thirtyfour Creative’s control including:
1. the Client’s account that is used by Thirtyfour Creative to perform the Paid Advertising being cancelled or disabled on a temporary or permanent basis;
2. the platform that is used by Thirtyfour Creative to perform the Paid Advertising changes its functionality; or
3. fluctuations in market responsiveness and need for the Client’s products or services,
4. and Thirtyfour Creative will not be liable for any loss or damage suffered by the Client arising from such circumstances.
Unless otherwise agreed in writing, the Services Fees charged by Thirtyfour Creative do not include Paid Advertising ad spend amounts or Thirtyfour Creative’s service fees to perform the Paid Advertising Services (collectively, Paid Advertising Fees). The Client will be responsible for paying these fees in addition to the Services Fees, along with any deposit set out in any Statement of Work.
If Thirtyfour Creative uses its own account to provide Paid Advertising Services, the account will be owned and operated by Thirtyfour Creative (Thirtyfour Creative Ad Account).
Thirtyfour Creative will own all Intellectual Property Rights in the information, data and other material in the Thirtyfour Creative Ad Account.
The Client will have no rights to access, operate or use the Thirtyfour Creative Ad Account at any time, including after the Term.
If Thirtyfour Creative will use the Client’s Paid Advertising account (Client Ad Account) to provide the Paid Advertising Services, then Thirtyfour Creative will ensure that, after the relevant Term:
1. Thirtyfour Creative will not access the Client Ad Account; and
2. the Client is provided access to the Client Ad Account.

4.4 WEBSITE DESIGN SERVICES

If a Statement of Work states that the Services include web development services, including building or customising websites (Website Design) the following conditions will apply unless otherwise agreed between the parties in the Statement of Work:

Thirtyfour Creative reserves the right to determine the choice of programming language(s) used in the Website Design;
Thirtyfour Creative may add content to the Website Design. However, Thirtyfour Creative will not be responsible for inputting text, images or other content, or creating all pages in the content management system of Website Design;
if Thirtyfour Creative is required to purchase the website domain on the Client’s behalf, Thirtyfour Creative will not hand over access to that domain until the Client has made final payment for the domain to Thirtyfour Creative;
Thirtyfour Creative will not provide any graphics for the Website Design, and if Thirtyfour Creative requires the Client to provide graphics, the Client must provide Thirtyfour Creative with graphic files in an editable, high resolution, vector digital format;
Thirtyfour Creative only tests websites in desktop resolution in the following web browsers: Apple Safari, Google Chrome, Microsoft Edge and Mozilla Firefox;
Thirtyfour Creative only tests websites mobile responsiveness on iOS Safari and Google Chrome on Android phones; and
the Client must at all times cooperate with Thirtyfour Creative, including by providing prompt and clear instructions in relation to the Website Design.

4.5 SOCIAL MEDIA MARKETING SERVICES

If a Statement of Work states that the Services include social media marketing, Thirtyfour Creative will manage the Client’s social media accounts nominated in the Statement of Work provided that the Client provides Thirtyfour Creative with all relevant usernames and passwords.
Unless otherwise specified in the Statement of Work, the social media marketing services will include:
1. creating content, engagement, and ongoing management;
2. monitoring social media conversations and responding to the same; and
3. managing all social media communication with the Client.
Thirtyfour Creative’s performance of the social media marketing services may be affected by circumstances outside Thirtyfour Creative’s control including:
1. the Client’s account that is used by Thirtyfour Creative to perform the social media marketing services being hacked, cancelled or disabled on a temporary or permanent basis; and
2. the social media platform changes its functionality,
and Thirtyfour Creative will not be liable for any loss or damage suffered by the Client arising from such circumstances.

4.6 GRAPHIC DESIGN

If the Client requires Thirtyfour Creative to use content, graphics or other material belonging to a third party as part of a graphic design, the Client must acquire a licence to use such designs, whether for a fee or otherwise, and indemnifies Thirtyfour Creative in relation to any loss or damage that may arise in connection with a breach of this clause.

4.7 INFLUENCERS

If the Services include Thirtyfour Creative engaging social media influencers, including persons such as public figures, influential chefs or anyone similar (Influencers) on behalf of the Client to appear in marketing campaigns or otherwise be involved in the Client’s public or online presence (for example, through social media marketing campaigns), the Client acknowledges and agrees that:

any Influencer engagement is directly between the Client and the Influencer;
the Client is required to pay for the Influencers Fees;
Thirtyfour Creative is not responsible for, and will not be liable for any loss or damage suffered by the Client arising from:
1. the Influencer’s failure to perform the services as agreed or at all;
2. any aspect of the Influencer performing any services for the Client (including any negative press about the Influencer or bad reviews written by the Influencer); and
3. any damage suffered to the Influencer in connection with performing the Influencer’s services.

5 CLIENT OBLIGATIONS

5.1 PROVIDE INFORMATION

The Client must provide Thirtyfour Creative with all documentation, information and assistance reasonably required by Thirtyfour Creative to perform the Services.
The Client must provide feedback on all documents or other mock-ups provided to the Client within the agreed time frame, if feedback is included in the Services. If the Client delays in providing any feedback, there may be delays in the Services which Thirtyfour Creative will not be liable for.
The Client warrants that all information, documentation and other material it provides to Thirtyfour Creative for the purpose of receiving the Services, including company information, marketing information, financial records and commercial information, is complete, accurate, compliant with any applicable laws and industry regulations, and up-to-date.
The Client releases Thirtyfour Creative from all liability in relation to any loss or damage arising out of or in connection with the Services, to the extent such loss or damage is caused or contributed to by information, documentation or any other material provided by the Client being incomplete, inaccurate or out-of-date.

5.2 ACCESS

The Client agrees to provide Thirtyfour Creative with access to:

the Client’s premises and personnel, to the extent required to perform the Services;
the Client’s Paid Advertising account (including login details and passwords);
the Client’s website (but only where Thirtyfour Creative is providing Services that involve making updates or changes to the Client’s website); and
any other third party or other accounts used by the Client (including login details and passwords),
as reasonably required by Thirtyfour Creative to perform the Services.

5.3 THE PREMISES

(Ownership) The Client warrants that it is the owner of any premises it requests Thirtyfour Creative to provide Services at (Premises), or that the Client has obtained authority from the owner/s of the Premises for the Services to be performed.
(Access) The Client must ensure that Thirtyfour Creative has clear and free access to the Premises, and to every area of the Premises that Thirtyfour Creative reasonably needs to access to provide the Services, at the times Thirtyfour Creative will be providing the Services. The Client must provide Thirtyfour Creative with any site inductions required before performing the Services at the Premises.
(Clean) On or before the Services begin, the Client must ensure the Premises is clean, unobstructed and ready for Thirtyfour Creative to carry out the Services, including by ensuring that the Client’s personnel, or third party personnel, do not interfere with the Services, and are not performing services in proximity to the Services such that they may disturb or obstruct the Services. The Client agrees that if the Premises are not clean and ready in accordance with this clause 5.3, Thirtyfour Creative will nonetheless be entitled to charge the Client a call-out fee for each member of Thirtyfour Creative’s personnel who were booked to attend the Premises on that day.
(Authority or approval) The Client must obtain any necessary authority or approval (including strata or building management approval if applicable) so that Thirtyfour Creative can carry out the Services on the Premises.
(No access) Where Thirtyfour Creative is unable to gain access to the Premises due to the Client’s non-compliance with this clause 5.3, omission, fault or otherwise, it is the Client’s responsibility to reschedule any Services and Thirtyfour Creative reserves the right to claim any referable expenses, including travel and lost income and to charge this to the Client.
(Safety) The Client warrants that the Premises are safe for Thirtyfour Creative and its Personnel to enter and perform the Services including, where applicable, complying with any relevant occupational health and safety legislation and requirements.

5.4 CLIENT MATERIALS

The Client warrants that all information, documentation and other material they provide to Thirtyfour Creative for the purpose of receiving the Services is complete, accurate and up-to-date, including floor plans if applicable.
The Client acknowledges and agrees that Thirtyfour Creative will rely on the accuracy of any plans, specifications and other information the Client provides.
The Client releases Thirtyfour Creative from all liability in relation to any loss or damage that may arise in connection with the Services, to the extent it is caused or contributed to by information, documentation or any other material provided by the Client being incomplete, inaccurate or out-of-date.

5.5 COMPLIANCE WITH LAWS

The Client agrees that it will not by receiving or requesting the Services:

breach any applicable laws, rules and regulations (including any applicable privacy laws); or
infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.

5.6 INSURANCE

The Client acknowledges and agrees that it is responsible for insuring itself against its risks under and in connection with this agreement.
The Client must ensure that it effects and maintains adequate insurance to cover the Client’s risks and liabilities under this agreement and any activities undertaken by the Client in connection with this agreement, including marketing campaigns, including as applicable to the particular activity, business insurance, professional indemnity insurance, errors and omissions insurance and public liability insurance

6 FEES AND PAYMENT

6.1 FEES

The Client must pay the Fees in the amounts, and on or before the Due Date(s), set out in a Statement of Work.
To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth) any Fees paid in accordance with this agreement are non-refundable.
If there is no Due Date set out in a Statement of Work in relation to a Fee, that Fee must be paid at the time set out the relevant invoice issued by Thirtyfour Creative.

6.2 DEPOSITS AND RETAINERS

Thirtyfour Creative may require the payment of a deposit or a retainer prior to any Services being provided. Thirtyfour Creative reserves the right to not commence work on any Services until this deposit or retainer is paid.
To the extent permitted by law, deposits and retainers are non-refundable.

6.3 INVOICES

Thirtyfour Creative will issue a valid tax invoice to the Client for payment of the Fees. The Client must pay the Fees in accordance with the remittance method set out in an invoice.

6.4 SUSPENSION OF SERVICES

Thirtyfour Creative reserves the right to suspend all or part of the Services indefinitely where the Client fails to pay the Fees in accordance with clause 6.1

6.5 DIRECT DEBIT

If a Statement of Work states that the Fees are to be paid using direct debit (DD), the Client:

authorises direct debit in line with the third party payment provider’s, as notified to the Client (Payment Provider), separate DD Authorisation Form and any DD agreement as applicable;
agrees to enter into any DD agreement required by our Payment Provider;
authorises us to charge your bank account or credit card in advance in line with any DD Authorisation Form and any DD agreement;
must ensure that there are sufficient funds available in your account to allow our Payment Provider to debit the fees payable; and
acknowledges and agrees that there may be additional payments required from the Payment Provider if you miss or fail to make any payment. These terms are separate and in addition to these Terms.

6.6 PAID ADVERTISING

The Services Fees charged do not include Paid Advertising or other digital marketing ad spend amounts, or any other expenses set out in clause 6.8, and the Client will be responsible for paying these fees directly to the relevant platform or otherwise billed to the Client in accordance with clause 6.8.
If requested by Thirtyfour Creative, the Client must provide Thirtyfour Creative with its credit card, direct debit or other financial details for the purposes of making digital advertising payments on the Client’s behalf.
The Client consents to Thirtyfour Creative’s using of the Client’s credit card, direct debit or other financial details on its behalf to make payments for digital advertising services and any other related services reasonably necessary for Thirtyfour Creative to perform the Services.

6.7 LATE PAYMENT

If the Client does not pay an amount due under this agreement on or before the date it is due:

Thirtyfour Creative may immediately suspend provision of the Services;
Thirtyfour Creative may seek to recover the amount due by referring the matter to a collection agency;
without limiting any of Thirtyfour Creative’s other rights under these terms, the Client must pay Thirtyfour Creative interest at the rate of 15% per annum on each amount outstanding, accruing daily and compounding monthly, from the due date for payment to the date on which payment is received by Thirtyfour Creative; and
the Client must reimburse Thirtyfour Creative for any costs it incurs, including any legal costs, in connection with recovering the amount due or enforcing any of its rights under this agreement.

6.8 EXPENSES

Unless otherwise agreed in writing:

the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by Thirtyfour Creative in connection with the Services; and
any third party costs incurred by Thirtyfour Creative in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in a Statement of Work.

6.9 GST

Unless otherwise indicated, amounts stated in a Statement of Work do not include GST. In relation to any GST payable for a taxable supply by Thirtyfour Creative, the Client must pay the GST subject to Thirtyfour Creative providing a tax invoice.

6.10 CARD SURCHARGES

Thirtyfour Creative reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

6.11 ONLINE PAYMENT PARTNER

Thirtyfour Creative may use third-party online payment partners, currently Stripe (Online Payment Partner) to collect Fees.
Provided that Thirtyfour Creative has notified the Client of such Third Party Terms and provided a copy of those terms unless it is not reasonably practicable to do so, the Client acknowledge agree that:
1. the processing of payments by the Online Payment Partner will be, in addition to this agreement, subject to the terms, conditions and privacy policies of the Online Payment Partner, which can be found https://stripe.com/au/legal/;
2. the Client releases Thirtyfour Creative and our Personnel in respect of all liability for loss, damage or injury which may be suffered by any person arising from any act or omission of the Online Payment Partner, including any issue with security or performance of the Online Payment Partner’s platform or any error or mistake in processing payment; and
3. Thirtyfour Creative reserves the right to correct, or to instruct the Online Payment Partner to correct, any errors or mistakes in collecting payment.
The Client has the right to reject any terms and conditions of the Online Payment Partner. If the Client rejects those terms, Thirtyfour Creative cannot provide the Services and clause 14.1(a) will apply.

7 ACCREDITATIONS

Unless otherwise agreed in writing:

all displays or publications of any deliverables provided to the Client as part of the Services (Deliverables) must bear an accreditation and/or a copyright notice including Thirtyfour Creative’s name in the form, size and location as directed by Thirtyfour Creative;
the Client must not, during or after the Term, remove the accreditation to Thirtyfour Creative;
Thirtyfour Creative retains the right to describe the Services and reproduce, publish and display the Deliverables in Thirtyfour Creative’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Services and Deliverables in connection with such uses; and
In connection with such uses under this clause 7, Thirtyfour Creative may:
1. exercise such rights after termination of this agreement, and if the Client is no longer a client of Thirtyfour Creative;
2. be credited with authorship of the Services and Deliverables; and
3. refer to the Client, and use the Client’s name, logos and other branding (acting reasonably, and without holding itself out as acting on behalf of the Client).

8 CONFIDENTIALITY, RESTRAINT, PRIVACY and DATA

8.1 CONFIDENTIALITY

Except as contemplated by this agreement or the Key Agreement Details, or a Statement of Work, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
This clause does not apply to:
1. information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
2. information required to be disclosed by any law; or
3. information disclosed by Thirtyfour Creative to its subcontractors, outsourced workers, employees, cloud storage providers or agents for the purposes of performing the Services or its obligations under this agreement.
For the purposes of this clause 8.1, “Confidential Information” means information of or provided by a party to the other party under or in connection with this agreement or the Statement of Work that is by its nature confidential information, is designated by the party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge. :
For the Client only, “Confidential Information” also includes the terms of this agreement.

8.2 RESTRAINT

For the duration of the Term and for 1 year thereafter, the Client must not employ or engage (or be knowingly involved in another employing or engaging) any officers or employees of Thirtyfour Creative with which the Client had contact during the course of the Key Agreement Details.

8.3 PRIVACY

The parties agree to comply with:
1. if applicable, their respective obligations under the Privacy Act 1988 (Cth); and
2. Thirtyfour Creative’s privacy policy, in force from time to time.
Thirtyfour Creative will keep the Client informed of any changes to its privacy policy during the Term.

8.4 THIRD PARTY DATA

The Client warrants, in relation to the personal information and all other data that it provides to Thirtyfour Creative in connection with this agreement (Third Party Data), that:
1. the Client has all necessary rights in relation to Third Party Data, such that the Services can be performed in respect of that data;
2. the Client is not breaching any law by providing Thirtyfour Creative with Third Party Data;
3. Thirtyfour Creative will not breach any law by performing the Services in relation to any Third Party Data;
4. there are no restrictions placed on the use of the Third Party Data (including by any Third Party terms) and if there are any such restrictions, the Client has notified Thirtyfour Creative of this, and Thirtyfour Creative has agreed to perform the Services in respect of that data (being under no obligation to do so); and
5. Thirtyfour Creative will not breach any Third Party terms by performing the Services in relation to any Third Party Data.
The Client agrees at all times to indemnify and hold harmless Thirtyfour Creative and its officers, employees and agents from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those parties, where such loss or liability was caused or contributed to a breach of a warranty in clause 8.4(a).

9 INTELLECTUAL PROPERTY

9.1 DEFINITIONS

In this clause and any Statement of Work, the following terms have the following meanings in relation to Intellectual Property Rights:

Existing Material means Material, other than New Material;
New Material means Material that is created, written, developed or otherwise brought into existence during the Term for the purposes of this agreement; and
Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.

9.2 EXISTING MATERIAL

Except to the extent otherwise stated in a Statement of Work or in this clause 8.1:
1. each party retains ownership of the Intellectual Property Rights in its Existing Material; and
2. nothing in this agreement transfers ownership of, or assigns any Intellectual Property Rights in, either party’s Existing Material to the other party.
The Client grants to Thirtyfour Creative (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use its Existing Material to the extent reasonably required to perform any Services.
The Client warrants that Thirtyfour Creative’s use of the Client’s Existing Material will not infringe the Intellectual Property Rights of any third party and will indemnify Thirtyfour Creative from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
Thirtyfour Creative grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use its Existing Material, to the extent:
1. such Existing Material is incorporated into the New Material; and
2. such use is reasonably required for the Client to enjoy the benefit of the Services.

9.3 NEW MATERIAL

Unless otherwise stated in a Statement of Work, Intellectual Property Rights in New Material are immediately assigned to and vest in the Client as those rights are created.
The Client grants to Thirtyfour Creative a perpetual, irrevocable, transferable, worldwide and royalty free licence (including the right to sublicense) to use, copy, modify and adapt the New Material.

9.4 THIRD PARTY INTELLECTUAL PROPERTY

Thirtyfour Creative warrants that:

the provision of the Services to the Client; and
the Client’s receipt and use of the Services for their intended purpose, will not infringe the Intellectual Property Rights of any third party.

10 SUBCONTRACTING

Thirtyfour Creative may subcontract the provision of the Services. Thirtyfour Creative will be responsible for the acts or omissions of its subcontractors as if they were the acts or omissions of Thirtyfour Creative.

11 WARRANTIES

To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

12 LIABILITY

12.1 LIABILITY

To the maximum extent permitted by law and subject to clause 12.1(b), the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Client to Thirtyfour Creative under the most recent Statement of Work.
Clause 12.1(a) does not apply to the Client’s liability in respect of loss or damage sustained by Thirtyfour Creative arising from the Client’s breach of:
1. breach of third party intellectual property rights; or
2. breach of client obligations in clause 5.

12.2 CONSEQUENTIAL LOSS

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by Thirtyfour Creative, except:

in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

13 if the parties have a dispute

If an issue between the parties arises under this agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties.
The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute).
The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.
If mediation does not resolve the issue, the parties must:
1. if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and
2. based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense.
The parties will follow the binding outcome of arbitration (or other agreed mechanism).
Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement.
The process in this clause does not apply where a party requires an urgent injunction.

14 Termination

14.1 TERMINATION FOR CONVENIENCE

Either party may end this agreement for no reason, by providing notice to the other party.
This agreement will end 30 days after the day the notice is sent (the End Date).
On the End Date, Thirtyfour Creative will provide an invoice to the Client for:
1. any Fees for Services already performed up to the End Date (including Services performed to prepare not yet completed deliverables);
2. any pre-approved third party costs Thirtyfour Creative has incurred on the Client’s behalf up to the End Date; and
3. if terminated by the Client, Thirtyfour Creative’s pre-estimated genuine losses as a result of the Client ending this agreement,
(together, the Outstanding Amounts)
The Client will pay the Outstanding Amounts to Thirtyfour Creative [on the End Date / within a further 10 Business Days after the End Date], unless otherwise agreed in a written payment plan between the parties.
Once the Outstanding Amounts have been paid, Thirtyfour Creative will hand over any completed deliverables.
If Thirtyfour Creative terminates this agreement pursuant to this clause, Thirtyfour Creative will make reasonable efforts to handover the remaining scope of Services to the Client, so the Client can source an alternative provider.

14.1 TERMINATION FOR BREACH

If a party (the Notifying Party) considers that the other party is in breach of this agreement (the Breach), the Notifying Party may provide a notice to the other party.
The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.
The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
After the Rectification Period, the Notifying Party will:
1. if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
2. if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.
Any disputes regarding termination under this clause must be dealt with in accordance with clause 13. The indemnities, warranties and liability caps in clause 12 will apply to any disputes and resulting claims. Any pre-estimated losses in clause 14.1 will not limit or otherwise effect Thirtyfour Creative’s rights under this agreement, at law or otherwise in equity; Thirtyfour Creative’s losses resulting from the Client’s breach are likely to far exceed its losses resulting from termination for the Client’s convenience.

14.3 other consequences for termination

If this agreement ends, in addition to the specific consequences set out in clause 14.1 or 14.2 (as applicable), the parties will:

return all property and Confidential Information to the other party;
comply with all obligations that are by their nature intended to survive the end of this agreement, including without limitation clauses 5, 8, 9 and 12; and
stop using any materials that are no longer owned by, or licensed to, them when this agreement ends in accordance with clause 8.1.

14.4 STATEMENTS OF WORK

The same rights and responsibilities set out in this clause 14 apply to each Statement of Work as it applies to the agreement as a whole.
In the event either party elects to terminate this agreement as a whole or a single or multiple Statement of Work under this clause 14, any notice required to be given regarding the termination must clearly state whether the termination notice is to effect a single or multiple Statements of Work or the agreement as a whole.
In the event the termination is for:
1. a single or multiple Statements of Work, such termination will not impact any other Statements of Work then current, or the effect of this agreement as a whole; or
2. the agreement as a whole, such termination will be deemed to affect the agreement as a whole as well as all Statements of Work then current.

15 FORCE MAJEURE

A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:
1. act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
2. strike or other industrial action;
3. war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
4. decision of a government authority in relation to COVID-19, or other epidemic or pandemic,
to the extent the occurrence affects the Affected Party’s ability to perform the obligation.
If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
1. reasonable details of the Force Majeure Event; and
2. so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
Subject to compliance with clause 15(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.
The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.

16 NOTICES

Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in the Statement of Work and the email’s subject heading must refer to the name and date of this agreement.
If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.

17 GENERAL

17.1 GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

17.2 BUSINESS DAYS

If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.

17.3 AMENDMENTS

This agreement may only be amended in accordance with a written agreement between the parties.

17.4 WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

17.5 SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

17.6 JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

17.7 ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

17.8 COUNTERPARTS

This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.

17.9 COSTS

Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

17.10 ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

17.11 INTERPRETATION

(singular and plural) words in the singular includes the plural (and vice versa);
(gender) words indicating a gender includes the corresponding words of any other gender;
(defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(headings) headings and words in bold type are for convenience only and do not affect interpretation;
(includes) the word “includes” and similar words in any form is not a word of limitation;
(adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
(currency) a reference to $, or “dollar”, is to Australian currency, unless otherwise agreed in writing.

18 DEFINITIONS

In these terms and conditions, the following words and phrases have the following meaning:

Term	Meaning
Business Day	A day (other than a Saturday, Sunday, or any other day which is a public holiday) on which banks are open for general business in Sydney, Australia.
Confidential Information	Information of, or provided by, a party that is by its nature confidential information, is designated as confidential, or that the recipient of the information knows or ought to know is confidential (including all commercial information exchanged between the parties), but does not include information which is, or becomes, without a breach of confidentiality, public knowledge.
Fees	The fees set out in a Statement of Work.
Intellectual Property Rights	All copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world.
Key Agreement Details	The key agreement details on the cover page of this agreement.
Key Dates / Times	Any Key Dates and / or Times set out in a Statement of Work.
Key Persons	The persons identified in a Statement of Work as the persons who Thirtyfour Creative intends to provide to perform the Services.
Personnel	Employees, secondees, agents and subcontractors (who are individuals), including employees and contractors (who are individuals) of subcontractors.
Statement of Work	A document agreed and signed by both parties in the form of the attached Statement of Work template in Schedule 2 and which addresses the matters contemplated in that form. The services to be provided by Thirtyfour Creative to the Client in accordance with a Statement of Work.
Term	Has the meaning given in clause 2(a).

Terms and conditions

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